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A08421 Summary:

A08421 Actions:

A08421 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A8421
 
SPONSOR: Simotas

 
TITLE OF BILL:  An act to amend the executive law, in relation to
increased protections for protected classes and special protections for
employees who have been sexually harassed; to amend the general obli-
gations law, in relation to nondisclosure agreements; to amend the civil
practice law and rules and the executive law, in relation to discrimi-
nation; to amend the labor law, in relation to requiring employers to
provide employees notice of their sexual harassment prevention training
program in writing in English and in employees' primary languages; to
amend the executive law, in relation to extending the statute of limita-
tions for claim resulting from unlawful or discriminatory practices
constituting sexual harassment to three years; to amend the labor law,
in relation to the model sexual harassment prevention guidance document
and sexual harassment prevention policy; and directing the commissioner
of labor to conduct a study on strengthening sexual harassment
prevention laws
 
 
PURPOSE OR GENERAL IDEA OF BILL:
 
This bill increases protections to employees of all protected classes
who have been subject to discriminatory harassment in the workplace.
 
 
SUMMARY OF PROVISIONS:
 
Section 1 provides that the Human Rights Law covers all employers in the
state, including the state and all political subdivisions thereof, for
all forms of discrimination and harassment.
 
Section 1-a This section further defines "private employer" to include
any person, company, corporation, labor organization or association, and
not any governmental entity.
 
Section 2 extends protection to discriminatory and to retaliatory
harassment based on all protected categories; eliminates the "severe or
pervasive" standard from discriminatory and retaliatory harassment
cases. This section also functions to eliminate part of the
Faragher/Ellerth defense.
 
Section 3 clarifies the basis for unlawful discriminatory harassment
relating to domestic workers.
 
Section 4 addresses circumstances under which employers are liable to
non-employees in the workplace, and extends liability for all forms of
unlawful discriminatory conduct.
 
Section 5 extends punitive damages to employment discrimination actions,
without limitation on the amount, to cases brought before the State
Division of Human Rights. It also provides for punitive damages and
provides for attorneys' fees to prevailing plaintiffs in all employment
discrimination cases, not just those based on sex discrimination.
 
Section 6 adds language to beginning of the Construction section to
explain that the statute is to be construed liberally, regardless of how
federal civil and human rights laws are construed.
 
Section 7 prohibits mandatory arbitration clauses related to discrimi-
nation. Section 8 prohibits non-disparagement provisions in employment
contracts from preventing employees from disclosing factual information
related to future claims of discrimination with law enforcement,
enforcement agencies, or private counsel, and prohibits non-disclosure
agreements from prohibiting the complainant from initiating, testifying,
assisting, complying, or participating in an investigation conducted by
any government agency, or disclosing facts necessary to receiving public
benefits.
 
Section 9 prohibits non-disclosure agreements from prohibiting the
disclosure of the underlying facts and circumstances to the claim or
action unless the condition of confidentiality is in the plaintiff's
preference in all discrimination cases.
 
Section 10 expands the powers of the Attorney General to prosecute cases
of discrimination based on all protected classes.
 
Section 11 provides that the Commissioner of Labor, in consultation with
the Commissioner of Human Rights shall conduct a study that reviews the
requirements for employers to provide a sexual harassment training and
policy, the scope of workplace discrimination made unlawful by state and
federal law, engagement with stakeholders on effective tools to remedi-
ate workplace discrimination, and an analysis on the efficacy of requir-
ing further training in reducing all forms of workplace discrimination.
 
Section 12 requires employers to provide their employees with a notice
containing their sexual harassment prevention policy and information
presented at their sexual harassment prevention training program both in
English and the employee's identified primary language.
 
Section 13 extends the time frame within which victims of sexual harass-
ment in the workplace must file administrative complaints with the Divi-
sion of Human Rights from one year to three years.
 
Section 14 requires that every four years the model sexual harassment
prevention guidance document and sexual harassment policy will be
reviewed and updated as necessary.
 
Section 15 contains the severability clause of this legislation.
 
Section 16 sets forth the effective date.
 
 
JUSTIFICATION:
 
During the year 2017 sexual harassment became a national issue with
dozens of high profile incidents finding the light of day and hundreds
of protests sweeping the nation. As a result the "Me Too" movement and
"Times Up" movement were formed to combat sexual harassment and discrim-
ination it all of its ugly forms. It is more imperative than ever that
the work of these movements continue and translate into actual policy
and change. The time for complacency is no more. In 2018, the Legisla-
ture enacted a number of measures to combat sexual harassment in the
workplace, including mandating that all employers in New York State have
a sexual harassment policy, employee training, and a clear complaint and
investigation process. This legislation builds off of what was done in
2018 to enact further reforms for sexual harassment, and extends those
protections to other protected classes in the employment context. In
conjunction with the newly enacted legislation coming out of the Women's
Equality Agenda budget items introduced in 2018, the passage and signage
of this bill will bring the State up to speed with widely accepted
reforms, such as eliminating the "severe or pervasive" standard applied
to sexual harassment cases and harassment based on all protected catego-
ries, longer statutes of limitations, attorney's fees and punitive
damages for victims, and a medley of reforms to help disclose to employ-
ees and victims their rights in the workplace and under State law. It is
time for New York State law to abandon the protection of those who would
discriminate and sexually harass in the workplace and recognize and
serve victims of discrimination.
 
 
PRIOR LEGISLATIVE HISTORY:
 
New bill.
 
 
FISCAL IMPLICATIONS:
 
To be determined
 
 
EFFECTIVE DATE:
This act shall take effect immediately, provided, however: Sections one
of this act shall take effect on the one hundred eightieth day after it
shall have become a law. Sections one-a, two, three, four, five, seven,
eight and nine of this act shall take effect on the sixtieth day after
it shall have become a law. Section thirteen of this act shall take
effect one year after it shall have become a law.  Sections one, one-a,
two, three, four, five, six and thirteen shall only apply to claims
filed under such sections on or after the effective date of such
sections. Effective immediately, the addition, amendment and/or repeal
of any rule or regulation necessary for the implementation of this act
on its effective date are authorized and directed to be made and
completed on or before such effective date.

A08421 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8421
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                      June 16, 2019
                                       ___________
 
        Introduced by M. of A. SIMOTAS, WRIGHT, ROZIC, WEINSTEIN, SIMON, CRUZ --
          read once and referred to the Committee on Codes
 
        AN  ACT to amend the executive law, in relation to increased protections
          for protected classes and special protections for employees  who  have
          been  sexually  harassed;  to  amend  the  general obligations law, in
          relation to nondisclosure agreements; to amend the civil practice  law
          and  rules  and  the  executive law, in relation to discrimination; to
          amend the labor law, in relation to  requiring  employers  to  provide
          employees  notice  of  their  sexual  harassment  prevention  training
          program in writing in English and in employees' primary languages;  to
          amend the executive law, in relation to extending the statute of limi-
          tations  for claim resulting from unlawful or discriminatory practices
          constituting sexual harassment to three years; to amend the labor law,
          in relation to the model sexual harassment prevention  guidance  docu-
          ment  and  sexual  harassment  prevention  policy;  and  directing the
          commissioner of labor to  conduct  a  study  on  strengthening  sexual
          harassment prevention laws

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision 5 of section  292  of  the  executive  law,  as
     2  amended  by  chapter  363  of  the  laws  of 2015, is amended to read as
     3  follows:
     4    5. The term "employer" [does not include any employer with fewer  than
     5  four  persons  in  his  or her employ except as set forth in section two
     6  hundred ninety-six-b of this article, provided,  however,  that  in  the
     7  case  of  an action for discrimination based on sex pursuant to subdivi-
     8  sion one of section two hundred ninety-six of this article, with respect
     9  to sexual harassment  only,  the  term  "employer"]  shall  include  all
    10  employers within the state, including the state and all political subdi-
    11  visions thereof.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13425-01-9
        A. 8421                             2
 
     1    §  1-a.  Section  292  of the executive law is amended by adding a new
     2  subdivision 37 to read as follows:
     3    37.  The  term "private employer" as used in section two hundred nine-
     4  ty-seven of this article shall include any person, company, corporation,
     5  labor organization or association. It shall not include the state or any
     6  local subdivision thereof, or any state  or  local  department,  agency,
     7  board or commission.
     8    §  2.  Subdivision 1 of section 296 of the executive law is amended by
     9  adding a new paragraph (h) to read as follows:
    10    (h) For an employer, licensing  agency,  employment  agency  or  labor
    11  organization to subject any individual to harassment because of an indi-
    12  vidual's  age,  race, creed, color, national origin, sexual orientation,
    13  gender identity or expression, military status, sex, disability, predis-
    14  posing genetic characteristics, familial status, marital status,  domes-
    15  tic  violence  victim  status, or because the individual has opposed any
    16  practices forbidden under this article or  because  the  individual  has
    17  filed  a  complaint,  testified or assisted in any proceeding under this
    18  article, regardless of  whether  such  harassment  would  be  considered
    19  severe  or  pervasive under precedent applied to harassment claims. Such
    20  harassment is an unlawful discriminatory practice when  it  subjects  an
    21  individual  to  inferior  terms,  conditions or privileges of employment
    22  because of the individual's membership in one or more of these protected
    23  categories. The fact that such individual did not make a complaint about
    24  the harassment to such employer, licensing agency, employment agency  or
    25  labor  organization shall not be determinative of whether such employer,
    26  licensing agency, employment  agency  or  labor  organization  shall  be
    27  liable. Nothing in this section shall imply that an employee must demon-
    28  strate  the  existence of an individual to whom the employee's treatment
    29  must be compared. It shall be an affirmative defense to liability  under
    30  this  subdivision  that  the  harassing  conduct does not rise above the
    31  level of what a  reasonable  victim  of  discrimination  with  the  same
    32  protected  characteristic would consider petty slights or trivial incon-
    33  veniences.
    34    § 3. Paragraph (b) of subdivision 2 of section 296-b of the  executive
    35  law,  as amended by chapter 8 of the laws of 2019, is amended to read as
    36  follows:
    37    (b) Subject a domestic worker  to  [unwelcome]  harassment  [based  on
    38  gender,   race,   religion,   sexual  orientation,  gender  identity  or
    39  expression or national origin, where such harassment has the purpose  or
    40  effect of unreasonably interfering with an individual's work performance
    41  by  creating an intimidating, hostile, or offensive working environment]
    42  as set out in paragraph (h) of subdivision  1  of  section  two  hundred
    43  ninety-six of this article.
    44    §  4.  Section  296-d  of  the executive law, as added by section 1 of
    45  subpart F of part KK of chapter 57 of the laws of 2018,  is  amended  to
    46  read as follows:
    47    §  296-d. [Sexual harassment] Unlawful discriminatory practices relat-
    48  ing to non-employees. It shall be an  unlawful  discriminatory  practice
    49  for an employer to permit [sexual harassment of] unlawful discrimination
    50  against  non-employees  in its workplace. An employer may be held liable
    51  to a non-employee who is a contractor, subcontractor, vendor, consultant
    52  or other person providing services pursuant to a contract in  the  work-
    53  place  or  who is an employee of such contractor, subcontractor, vendor,
    54  consultant or other person providing services pursuant to a contract  in
    55  the workplace, with respect to [sexual harassment] an unlawful discrimi-
    56  natory  practice,  when  the employer, its agents or supervisors knew or
        A. 8421                             3
 
     1  should have known  that  such  non-employee  was  subjected  to  [sexual
     2  harassment]  an unlawful discriminatory practice in the employer's work-
     3  place, and the employer failed to take immediate and appropriate correc-
     4  tive action. In reviewing such cases involving non-employees, the extent
     5  of  the  employer's control and any other legal responsibility which the
     6  employer may have with respect to the conduct of the  [harasser]  person
     7  who engaged in the unlawful discriminatory practice shall be considered.
     8    §  5.  Subdivision  1, paragraph c of subdivision 4 and subdivisions 9
     9  and 10 of section 297 of the executive law, subdivision 1 and  paragraph
    10  c  of  subdivision  4  as  amended  by  chapter 166 of the laws of 2000,
    11  subparagraph (vi) of paragraph c of subdivision 4 as amended by  section
    12  1 of part AA of chapter 57 of the laws of 2009, subdivision 9 as amended
    13  by  section 16 of part D of chapter 405 of the laws of 1999 and subdivi-
    14  sion 10 as amended by chapter 364 of the laws of 2015,  are  amended  to
    15  read as follows:
    16    1.  Any  person claiming to be aggrieved by an unlawful discriminatory
    17  practice may, by himself or herself or his or her attorney-at-law, make,
    18  sign and file with the division a verified complaint  in  writing  which
    19  shall state the name and address of the person alleged to have committed
    20  the  unlawful  discriminatory practice complained of and which shall set
    21  forth the particulars thereof and contain such other information as  may
    22  be  required  by the division. The commissioner of labor or the attorney
    23  general, or the chair of the commission  on  quality  of  care  for  the
    24  mentally  disabled,  or  the  division  on  its  own motion may, in like
    25  manner, make, sign and file  such  complaint.  In  connection  with  the
    26  filing  of  such  complaint,  the attorney general is authorized to take
    27  proof, issue subpoenas and administer oaths in the  manner  provided  in
    28  the  civil practice law and rules. Any employer whose employees, or some
    29  of them, refuse or threaten to refuse to cooperate with  the  provisions
    30  of  this article, may file with the division a verified complaint asking
    31  for assistance by conciliation or other remedial action.
    32    c. Within one hundred eighty days after the commencement of such hear-
    33  ing, a determination shall be made and an order  served  as  hereinafter
    34  provided.  If,  upon  all  the evidence at the hearing, the commissioner
    35  shall find that a respondent has engaged in any unlawful  discriminatory
    36  practice  as defined in this article, the commissioner shall state find-
    37  ings of fact and shall issue and cause to be served on  such  respondent
    38  an  order,  based on such findings and setting them forth, and including
    39  such of the following provisions as in the judgment of the division will
    40  effectuate the purposes of this article: (i) requiring  such  respondent
    41  to  cease  and  desist  from such unlawful discriminatory practice; (ii)
    42  requiring such respondent to take  such  affirmative  action,  including
    43  (but  not  limited  to) hiring, reinstatement or upgrading of employees,
    44  with or without back pay, restoration to membership  in  any  respondent
    45  labor organization, admission to or participation in a guidance program,
    46  apprenticeship  training  program,  on-the-job training program or other
    47  occupational training or retraining  program,  the  extension  of  full,
    48  equal and unsegregated accommodations, advantages, facilities and privi-
    49  leges  to  all persons, granting the credit which was the subject of any
    50  complaint, evaluating applicants for membership in a place  of  accommo-
    51  dation  without  discrimination  based  on  race, creed, color, national
    52  origin, sex, disability or marital status, and  without  retaliation  or
    53  discrimination  based on opposition to practices forbidden by this arti-
    54  cle or filing a complaint, testifying or  assisting  in  any  proceeding
    55  under this article; (iii) awarding of compensatory damages to the person
    56  aggrieved  by such practice; (iv) awarding of punitive damages, in cases
        A. 8421                             4
 
     1  of employment discrimination related to private employers, and, in cases
     2  of housing discrimination [only], with damages in housing discrimination
     3  cases in an amount not to exceed ten thousand  dollars,  to  the  person
     4  aggrieved  by  such  practice;  (v)  requiring  payment  to the state of
     5  profits obtained by a respondent  through  the  commission  of  unlawful
     6  discriminatory  acts  described  in  subdivision  three-b of section two
     7  hundred ninety-six of this article; and (vi) assessing civil  fines  and
     8  penalties, in an amount not to exceed fifty thousand dollars, to be paid
     9  to the state by a respondent found to have committed an unlawful discri-
    10  minatory  act,  or not to exceed one hundred thousand dollars to be paid
    11  to the state by a respondent found to have committed an unlawful discri-
    12  minatory act which is found to be willful, wanton  or  malicious;  (vii)
    13  requiring  a  report  of  the  manner  of  compliance.  If, upon all the
    14  evidence, the commissioner shall find that a respondent has not  engaged
    15  in  any  such  unlawful  discriminatory  practice, he or she shall state
    16  findings of fact and shall issue and cause to be served on the complain-
    17  ant an order based on such findings and setting  them  forth  dismissing
    18  the said complaint as to such respondent. A copy of each order issued by
    19  the  commissioner shall be delivered in all cases to the attorney gener-
    20  al, the secretary of state, if he or she has issued  a  license  to  the
    21  respondent, and such other public officers as the division deems proper,
    22  and  if  any  such order issued by the commissioner concerns a regulated
    23  creditor, the commissioner shall forward a copy of any such order to the
    24  superintendent. A copy of any complaint filed against any respondent who
    25  has previously entered into a conciliation agreement pursuant  to  para-
    26  graph  a  of subdivision three of this section or as to whom an order of
    27  the division has previously been  entered  pursuant  to  this  paragraph
    28  shall be delivered to the attorney general, to the secretary of state if
    29  he  or  she  has  issued  a  license to the respondent and to such other
    30  public officers as the division deems proper, and if any such respondent
    31  is a regulated creditor, the commissioner shall forward a  copy  of  any
    32  such complaint to the superintendent.
    33    9.  Any  person claiming to be aggrieved by an unlawful discriminatory
    34  practice shall have a cause of action in any court of appropriate juris-
    35  diction for damages, including, in cases  of  employment  discrimination
    36  related  to  private employers and housing discrimination only, punitive
    37  damages, and such other remedies as may be  appropriate,  including  any
    38  civil  fines and penalties provided in subdivision four of this section,
    39  unless such person had filed a complaint hereunder  or  with  any  local
    40  commission  on  human rights, or with the superintendent pursuant to the
    41  provisions of section two hundred ninety-six-a of this chapter, provided
    42  that, where the division has dismissed such complaint on the grounds  of
    43  administrative  convenience,  on  the grounds of untimeliness, or on the
    44  grounds that the election of remedies is  annulled,  such  person  shall
    45  maintain all rights to bring suit as if no complaint had been filed with
    46  the  division. At any time prior to a hearing before a hearing examiner,
    47  a person who has a complaint pending at the division  may  request  that
    48  the  division  dismiss  the  complaint  and annul his or her election of
    49  remedies so that the human rights law claim may be pursued in court, and
    50  the division may, upon  such  request,  dismiss  the  complaint  on  the
    51  grounds  that  such  person's  election  of  an administrative remedy is
    52  annulled. Notwithstanding subdivision (a) of section two hundred four of
    53  the civil practice law and rules, if a complaint is so annulled  by  the
    54  division,  upon  the request of the party bringing such complaint before
    55  the division, such party's rights to bring such cause of action before a
    56  court of appropriate jurisdiction shall be limited  by  the  statute  of
        A. 8421                             5
 
     1  limitations  in  effect  in  such  court  at  the time the complaint was
     2  initially filed with the division. Any party to a housing discrimination
     3  complaint shall have the right within twenty days following  a  determi-
     4  nation  of probable cause pursuant to subdivision two of this section to
     5  elect to have an action commenced in a  civil  court,  and  an  attorney
     6  representing  the  division of human rights will be appointed to present
     7  the complaint in court, or, with the consent of the division,  the  case
     8  may  be  presented  by  complainant's attorney. A complaint filed by the
     9  equal employment opportunity commission to comply with the  requirements
    10  of  42  USC  2000e-5(c)  and 42 USC 12117(a) and 29 USC 633(b) shall not
    11  constitute the filing of a complaint within the meaning of this subdivi-
    12  sion. No person who has initiated any action in  a  court  of  competent
    13  jurisdiction  or  who  has  an  action pending before any administrative
    14  agency under any other law of the state based upon an act which would be
    15  an unlawful discriminatory practice  under  this  article,  may  file  a
    16  complaint with respect to the same grievance under this section or under
    17  section two hundred ninety-six-a of this article.
    18    10.  With  respect  to all cases of housing discrimination and housing
    19  related credit discrimination in an action or proceeding  at  law  under
    20  this  section  or  section two hundred ninety-eight of this article, the
    21  commissioner or the court may in its discretion award reasonable  attor-
    22  ney's fees to any prevailing or substantially prevailing party; and with
    23  respect to a claim of [employment or] credit discrimination where sex is
    24  a  basis  of  such  discrimination,  and  with  respect to all claims of
    25  employment discrimination in an action or proceeding at law  under  this
    26  section or section two hundred ninety-eight of this article, the commis-
    27  sioner  or  the  court  [may  in  its discretion] shall award reasonable
    28  attorney's fees attributable to such  claim  to  any  prevailing  party;
    29  provided, however, that a prevailing respondent or defendant in order to
    30  recover  such  reasonable  attorney's fees must make a motion requesting
    31  such fees and show that the action or proceeding brought was  frivolous;
    32  and  further  provided  that  in a proceeding brought in the division of
    33  human rights, the commissioner may only award attorney's fees as part of
    34  a final order after a public hearing held pursuant to  subdivision  four
    35  of  this  section.  In  no  case shall attorney's fees be awarded to the
    36  division, nor shall the division be liable to a prevailing  or  substan-
    37  tially  prevailing  party for attorney's fees, except in a case in which
    38  the division is a party to the action or the  proceeding  in  the  divi-
    39  sion's capacity as an employer. In cases of employment discrimination, a
    40  respondent  shall only be liable for attorney's fees under this subdivi-
    41  sion if the respondent has been found liable  for  having  committed  an
    42  unlawful  discriminatory  practice.  In  order  to  find  the  action or
    43  proceeding to be frivolous, the court or the commissioner must  find  in
    44  writing one or more of the following:
    45    (a)  the  action or proceeding was commenced, used or continued in bad
    46  faith, solely to delay or prolong the resolution of the litigation or to
    47  harass or maliciously injure another; or
    48    (b) the action or proceeding was commenced or continued in  bad  faith
    49  without  any reasonable basis and could not be supported by a good faith
    50  argument for an extension, modification or reversal of existing law.  If
    51  the  action  or  proceeding  was promptly discontinued when the party or
    52  attorney learned or should have learned that the  action  or  proceeding
    53  lacked such a reasonable basis, the court may find that the party or the
    54  attorney did not act in bad faith.
    55    §  6.  Section  300 of the executive law, as amended by chapter 166 of
    56  the laws of 2000, is amended to read as follows:
        A. 8421                             6
 
     1    § 300. Construction. The provisions of this article shall be construed
     2  liberally for the  accomplishment  of  the  remedial  purposes  thereof,
     3  regardless  of  whether  federal civil rights laws, including those laws
     4  with provisions worded comparably to the  provisions  of  this  article,
     5  have been so construed. Exceptions to and exemptions from the provisions
     6  of  this article shall be construed narrowly in order to maximize deter-
     7  rence of discriminatory conduct. Nothing contained in this article shall
     8  be deemed to repeal any of the provisions of the civil rights law or any
     9  other law of this state relating to  discrimination  [because  of  race,
    10  creed,  color  or national origin]; but, as to acts declared unlawful by
    11  section two hundred ninety-six of this  article,  the  procedure  herein
    12  provided shall, while pending, be exclusive; and the final determination
    13  therein shall exclude any other state civil action[, civil or criminal,]
    14  based  on  the same grievance of the individual concerned. If such indi-
    15  vidual institutes any action based on such grievance  without  resorting
    16  to the procedure provided in this article, he or she may not subsequent-
    17  ly resort to the procedure herein.
    18    § 7. Section 5-336 of the general obligations law, as added by section
    19  1  of subpart D of part KK of chapter 57 of the laws of 2018, is amended
    20  to read as follows:
    21    § 5-336. Nondisclosure agreements. 1. (a)  Notwithstanding  any  other
    22  law  to  the contrary, no employer, its officers or employees shall have
    23  the authority to include or agree to include in any  settlement,  agree-
    24  ment  or other resolution of any claim, the factual foundation for which
    25  involves  [sexual  harassment]  discrimination,  in  violation  of  laws
    26  prohibiting  discrimination,  including  but  not  limited  to,  article
    27  fifteen of the executive law, any term or condition that  would  prevent
    28  the disclosure of the underlying facts and circumstances to the claim or
    29  action  unless  the  condition  of  confidentiality is the complainant's
    30  preference.
    31    (b) Any such term or condition must be  provided  in  writing  to  all
    32  parties  in  plain  English, and, if applicable, the primary language of
    33  the complainant, and the  complainant  shall  have  twenty-one  days  to
    34  consider  such  term or condition. If after twenty-one days such term or
    35  condition is the complainant's  preference,  such  preference  shall  be
    36  memorialized  in  an agreement signed by all parties. For a period of at
    37  least  seven  days  following  the  execution  of  such  agreement,  the
    38  complainant may revoke the agreement, and the agreement shall not become
    39  effective or be enforceable until such revocation period has expired.
    40    (c)  Any  such  term  or condition shall be void to the extent that it
    41  prohibits or otherwise restricts the complainant from:  (i)  initiating,
    42  testifying,  assisting, complying with a subpoena from, or participating
    43  in any manner with an investigation conducted by the appropriate  local,
    44  state,  or federal agency; or (ii) filing or disclosing any facts neces-
    45  sary to receive unemployment insurance, Medicaid, or other public  bene-
    46  fits to which the complainant is entitled.
    47    2. Notwithstanding any provision of law to the contrary, any provision
    48  in  a  contract or other agreement between an employer or an agent of an
    49  employer and any employee or potential employee of that employer entered
    50  into on or after January first, two thousand twenty, that  prevents  the
    51  disclosure  of  factual  information  related  to  any  future  claim of
    52  discrimination is void and unenforceable unless such provision  notifies
    53  the  employee or potential employee that it does not prohibit him or her
    54  from speaking with law enforcement,  the  equal  employment  opportunity
    55  commission,  the  state  division of human rights, a local commission on
        A. 8421                             7
 
     1  human rights, or an attorney  retained  by  the  employee  or  potential
     2  employee.
     3    §  8.  Paragraphs  2  and  3 of subdivision (a) of section 7515 of the
     4  civil practice law and rules, as added by section 1 of subpart B of part
     5  KK of chapter 57 of the laws of 2018, are amended to read as follows:
     6    2. The term "prohibited clause" shall mean any clause or provision  in
     7  any  contract  which  requires  as a condition of the enforcement of the
     8  contract or obtaining remedies  under  the  contract  that  the  parties
     9  submit  to  mandatory  arbitration to resolve any allegation or claim of
    10  [an unlawful discriminatory practice  of  sexual  harassment]  discrimi-
    11  nation,  in  violation of laws prohibiting discrimination, including but
    12  not limited to, article fifteen of the executive law.
    13    3. The term "mandatory  arbitration  clause"  shall  mean  a  term  or
    14  provision  contained in a written contract which requires the parties to
    15  such contract  to  submit  any  matter  thereafter  arising  under  such
    16  contract to arbitration prior to the commencement of any legal action to
    17  enforce  the provisions of such contract and which also further provides
    18  language to the effect that the facts found or determination made by the
    19  arbitrator or panel of arbitrators in its application to a party  alleg-
    20  ing  [an  unlawful  discriminatory  practice based on sexual harassment]
    21  discrimination, in violation of laws prohibiting discrimination, includ-
    22  ing but not limited to, article fifteen of the executive  law  shall  be
    23  final and not subject to independent court review.
    24    §  9.  Section 5003-b of the civil practice law and rules, as added by
    25  section 2 of subpart D of part KK of chapter 57 of the laws of 2018,  is
    26  amended to read as follows:
    27    §  5003-b.  Nondisclosure agreements. Notwithstanding any other law to
    28  the contrary, for any claim or cause of action,  whether  arising  under
    29  common  law, equity, or any provision of law, the factual foundation for
    30  which involves [sexual harassment] discrimination, in violation of  laws
    31  prohibiting  discrimination,  including  but  not  limited  to,  article
    32  fifteen of the executive law, in resolving, by agreed  judgment,  stipu-
    33  lation,  decree,  agreement  to  settle,  assurance of discontinuance or
    34  otherwise, no employer, its officer or employee shall have the authority
    35  to include or agree to include in such resolution any term or  condition
    36  that  would  prevent  the disclosure of the underlying facts and circum-
    37  stances to the claim or action unless the condition  of  confidentiality
    38  is  the  plaintiff's  preference.  Any  such  term  or condition must be
    39  provided to all parties, and the plaintiff shall have twenty-one days to
    40  consider such term or condition. If after twenty-one days such  term  or
    41  condition  is the plaintiff's preference, such preference shall be memo-
    42  rialized in an agreement signed by all parties. For a period of at least
    43  seven days following the execution of such agreement, the plaintiff  may
    44  revoke the agreement, and the agreement shall not become effective or be
    45  enforceable until such revocation period has expired.
    46    § 10. Subdivisions 9 and 10 of section 63 of the executive law, subdi-
    47  vision  9  as amended by chapter 359 of the laws of 1969, are amended to
    48  read as follows:
    49    9. Bring and prosecute or defend  upon  request  of  the  [industrial]
    50  commissioner  of  labor or the state division of human rights, any civil
    51  action or proceeding, the institution or defense of which in  his  judg-
    52  ment  is  necessary  for effective enforcement of the laws of this state
    53  against discrimination by reason of age, race, sex, creed,  color  [or],
    54  national  origin,  sexual  orientation,  gender  identity or expression,
    55  military status, disability, predisposing genetic characteristics, fami-
    56  lial status, marital status, or domestic violence victim status, or  for
        A. 8421                             8
 
     1  enforcement  of any order or determination of such commissioner or divi-
     2  sion made pursuant to such laws.
     3    10.  Prosecute  every person charged with the commission of a criminal
     4  offense in violation of any of the laws of this state against  discrimi-
     5  nation  because  of  age, race, sex, creed, color, [or] national origin,
     6  sexual orientation, gender  identity  or  expression,  military  status,
     7  disability, predisposing genetic characteristics, familial status, mari-
     8  tal status, or domestic violence victim status, in any case where in his
     9  judgment,  because of the extent of the offense, such prosecution cannot
    10  be effectively carried on by the district attorney of the county wherein
    11  the offense or a portion thereof is alleged to have been  committed,  or
    12  where  in  his  judgment the district attorney has erroneously failed or
    13  refused to prosecute. In all such proceedings, the attorney-general  may
    14  appear  in  person or by his deputy or assistant before any court or any
    15  grand jury and exercise all the powers and perform  all  the  duties  in
    16  respect of such actions or proceedings which the district attorney would
    17  otherwise be authorized or required to exercise or perform.
    18    §  11. Paragraph b of subdivision 1 of section 201-g of the labor law,
    19  as added by section 1 of subpart E of part KK of chapter 57 of the  laws
    20  of  2018,  is  amended  and  a  new  subdivision 2-a is added to read as
    21  follows:
    22    b. Every employer shall adopt the model sexual  harassment  prevention
    23  policy  promulgated  pursuant  to this subdivision or establish a sexual
    24  harassment prevention policy to prevent sexual harassment that equals or
    25  exceeds the minimum standards provided by such model  sexual  harassment
    26  prevention  policy.  Such  sexual  harassment prevention policy shall be
    27  provided to all employees in writing as required by subdivision two-a of
    28  this section. Such model sexual harassment prevention  policy  shall  be
    29  publicly available and posted on the websites of both the department and
    30  the division of human rights.
    31    2-a.  a. Every employer shall provide his or her employees, in writing
    32  in English and in the language identified by each employee as the prima-
    33  ry language of such employee, at the time of hiring and at every  annual
    34  sexual  harassment  prevention training provided pursuant to subdivision
    35  two of this section, a notice containing such employer's sexual  harass-
    36  ment  prevention policy and the information presented at such employer's
    37  sexual harassment prevention training program.
    38    b. The commissioner  shall  prepare  templates  of  the  model  sexual
    39  harassment  prevention policy created and published pursuant to subdivi-
    40  sion one of this section and  the  model  sexual  harassment  prevention
    41  training  program  produced pursuant to subdivision two of this section.
    42  The commissioner shall  determine,  in  his  or  her  discretion,  which
    43  languages  to  provide  in addition to English, based on the size of the
    44  New York state population that speaks each language and any other factor
    45  that the commissioner shall deem relevant. All such templates  shall  be
    46  made  available to employers in such manner as determined by the commis-
    47  sioner.
    48    c. When an employee identifies  as  his  or  her  primary  language  a
    49  language  for  which  a template is not available from the commissioner,
    50  the employer shall  comply  with  this  subdivision  by  providing  that
    51  employee an English-language notice.
    52    d.  An  employer shall not be penalized for errors or omissions in the
    53  non-English portions of any notice provided by the commissioner.
    54    § 12. The commissioner of labor in collaboration with the commissioner
    55  of human rights shall conduct a study on how to build  on  the  require-
    56  ments of section two hundred one-g of the labor law, in order to further
        A. 8421                             9
 
     1  combat  unlawful  harassment  and  discrimination  in the workplace. The
     2  study shall include but not be limited to: a review of the  section  two
     3  hundred  one-g  of the labor law requirements for employers to provide a
     4  sexual  harassment  training  and policy to all employees and comparison
     5  with similar requirements across other jurisdictions; a  review  of  the
     6  full scope of discriminatory practices in the workplace made unlawful by
     7  relevant  state  and federal laws; engagement with relevant stakeholders
     8  on the most effective tools to prevent and remediate such discriminatory
     9  practices; and the efficacy of requiring such training in the  workplace
    10  in  reducing  discrimination. On or before December 1, 2019, the commis-
    11  sioner of labor shall submit  his  report  and  recommendations  to  the
    12  governor,  the  temporary president of the senate and the speaker of the
    13  assembly.
    14    § 13. Subdivision 5 of section 297 of the executive law, as amended by
    15  chapter 958 of the laws of 1968, is amended to read as follows:
    16    5. Any complaint filed pursuant to this section must be so filed with-
    17  in one year after the alleged unlawful discriminatory practice. In cases
    18  of sexual harassment in employment, any complaint filed pursuant to this
    19  section must be so filed within three years after the  alleged  unlawful
    20  discriminatory practices.
    21    § 14. Section 201-g of the labor law is amended by adding a new subdi-
    22  vision 4 to read as follows:
    23    4. Beginning in the year two thousand twenty-two, and every succeeding
    24  four  years thereafter, the department in consultation with the division
    25  of human rights shall evaluate, using the criteria within this  section,
    26  the  impact  of  the current model sexual harassment prevention guidance
    27  document and sexual harassment prevention policy.   Upon the  completion
    28  of  each evaluation the department shall update the model sexual harass-
    29  ment prevention guidance document and sexual harassment prevention poli-
    30  cy as needed.
    31    § 15. Severability clause. If any clause, sentence, paragraph,  subdi-
    32  vision, section or subpart of this act shall be adjudged by any court of
    33  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    34  impair, or invalidate the remainder thereof, but shall  be  confined  in
    35  its  operation  to the clause, sentence, paragraph, subdivision, section
    36  or subject thereof directly involved in the controversy  in  which  such
    37  judgment  shall  have  been  rendered.  It  is hereby declared to be the
    38  intent of the legislature that this act would have been enacted even  if
    39  such invalid provisions had not been included herein.
    40    § 16. This act shall take effect immediately, provided, however:
    41    (a)  Sections  one  of  this  act shall take effect on the one hundred
    42  eightieth day after it shall have become a law.
    43    (b) Sections one-a, two, three, four, five, seven, eight and  nine  of
    44  this  act  shall  take  effect  on  the sixtieth day after it shall have
    45  become a law.
    46    (c) Section thirteen of this act shall take effect one year  after  it
    47  shall have become a law.
    48    (d)  Sections  one,  one-a,  two,  three, four, five, six and thirteen
    49  shall only apply to claims filed under such sections  on  or  after  the
    50  effective date of such sections.
    51    (e)  Effective  immediately,  the addition, amendment and/or repeal of
    52  any rule or regulation necessary for the implementation of this  act  on
    53  its  effective date are authorized and directed to be made and completed
    54  on or before such effective date.